[Cite as Parmertor v. Chardon Local Schools, 2019-Ohio-328.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
ROBERT PARMERTOR, INDIVIDUALLY : OPINION
AND AS ADMINISTRATOR OF THE
ESTATE OF DANIEL PARMERTOR, :
DECEASED, et al., CASE NO: 2018-L-035
:
Plaintiffs-Appellants,
:
- vs -
:
CHARDON LOCAL SCHOOLS, et al.,
:
Defendants,
:
JOSEPH BERGANT, II, et al.,
:
Defendants-Appellees.
Civil Appeal from the Lake County Court of Common Pleas, Case No. 2014 CV 000490.
Judgment: Affirmed.
Peter William Marmaros, Djordjevic and Marmaros, 25550 Chagrin Boulevard, Suite
202, Beachwood, OH 44122; W. Craig Bashein, Bashein & Bashein Co., L.P.A.,
Terminal Tower, 35th Floor, 50 Public Square, Cleveland, OH 44113-2216; Paul W.
Flowers & Louis Everett Grube, Paul W. Flowers Co., L.P.A., Terminal Tower, Suite
1910, 50 Public Square, Cleveland, OH 44113; and John P. O’Neil, Elk & Elk Co. Ltd.,
6105 Parkland Boulevard, Mayfield Heights, OH 44124 (For Plaintiffs-Appellants).
Thomas E. Dover and Markus E. Apelis, Gallagher Sharp LLP, Sixth Floor, Bulkley
Building, 1501 Euclid Avenue, Cleveland, OH 44115 (For Defendants-Appellees).
TIMOTHY P. CANNON, J.
{¶1} Before this court is an appeal taken by plaintiffs-appellants from a February
15, 2018 judgment entry issued by the Lake County Court of Common Pleas granting
summary judgment in favor of defendants-appellees. The judgment is affirmed.
{¶2} This case emanates from the tragic shooting at Chardon High School on
February 27, 2012, perpetrated by Thomas M. Lane, III, which resulted in the deaths of
three students: Daniel Parmertor, Russell King, Jr., and Demetrius Hewlin. Another
student, Nick Walczak, was paralyzed, and two other students were injured.
{¶3} The circumstances of the shooting are generally undisputed. Lane was a
student at Lake Academy, an alternative school for students with academic or behavioral
issues. Lane’s bus ride to Lake Academy required him to change buses at Chardon High
School. On February 27, 2012, Lane took a gun and ammunition, hidden in his backpack,
on his bus ride to school. He got off the bus at Chardon High School and waited in the
school cafeteria for his transfer bus to Lake Academy. Other students were congregated
in the cafeteria. When the bell rang and students began to disperse, Lane reached into
his backpack and fired the concealed handgun, striking and killing Russell King, Jr. Lane
then removed the gun from the backpack and continued firing, striking and killing Daniel
Parmertor and Demetrius Hewlin and injuring two others. Frank Hall, the high school
football coach on cafeteria duty, confronted Lane and chased him down the hall from the
cafeteria. Lane shot Nick Walczak in the back as he ran down the hallway, seriously
injuring him, and then Lane ran out of the school. Surveillance video establishes 6
seconds elapsed between the first shot that was fired while the gun was still in the
backpack and the last shot that was fired in the cafeteria. Approximately 22 seconds
elapsed between the first shot and Lane’s exit from the building.
{¶4} A complaint was filed in the Lake County Court of Common Pleas on
February 27, 2014. The plaintiffs in the case are Robert and Dina Parmertor, each
individually and as administrators of the estate of Daniel Parmertor, deceased; Jeffrey T.
Orndorff, administrator of the estate of Demetrius Hewlin, deceased; Phyllis Ferguson;
Jeannie King, individually and as administratrix of the estate of Russell King, Jr.,
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deceased; Russell King; and Nick Walczak. The Parmertor, Hewlin, and King Plaintiffs
asserted claims against all defendants for wrongful death: negligence and recklessness;
wrongful death: conscious disregard, malice, willful and wanton misconduct; survivorship;
and loss of consortium1. Plaintiff Walczak asserted claims of negligence and
recklessness; and conscious disregard, malice, and willful and wanton misconduct.
{¶5} The named defendants in the complaint are Chardon Local Schools,
Chardon Local School District, and Chardon High School (collectively, “Chardon
Schools”); Joseph Bergant, II, Dana Stearns, Andy Fetchik, Drew Trimble, and Michael
J. Sedlack (collectively, “Chardon School Employees”); Chardon Board of Education and
Chardon Local Schools Board of Education (collectively, “Chardon School Board”);
Debbie Seenarine-Wilson, Blake Rear, Cindy Sague, Karen Blankenship, David
Fairbanks, Paul Stefanko, Guy Wilson, and Larry Reiter (collectively, “Chardon School
Board Members”); The Lake Academy Alternative School, The Lake Academy Alternative
School-Lake County Educational Service Center, Lake Academy, and Lake County
Educational Service Center (collectively, “Lake Academy”); and Bill Kermavner, John
Weiss, and Brian Bontempo (collectively, “Lake Educational Service Center Employees”).
{¶6} On November 25, 2014, the trial court dismissed Plaintiffs’ claims against
Chardon Schools, Chardon School Board, Chardon School Board Members, and Lake
Academy based upon statutory immunity pursuant to R.C. Chapter 2744. The trial court
also granted judgment on the pleadings in favor of the Chardon School Employees on
Plaintiffs’ claims for negligence, pursuant to R.C. 2744.03(A)(6).2 Plaintiffs’ claims
1. Plaintiff Russell King’s claims for loss of consortium were voluntarily dismissed, pursuant to Civ.R. 41(A),
as he is deceased.
2. These decisions were affirmed on appeal in Parmertor v. Chardon Local Schools, 11th Dist. Lake Nos.
2014-L-129 & 2014-L-133, 2016-Ohio-761.
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against the Lake Educational Service Center Employees were also dismissed, pursuant
to a Civ.R. 41(A) notice of dismissal, on August 10, 2017.
{¶7} The Chardon School Employees subsequently moved for summary
judgment on Plaintiffs’ remaining claims, on the basis that there is legally insufficient
evidence of specific conduct that rises to the level of malice, bad faith, wanton, or reckless
so as to overcome the statutory immunity to which they are entitled. They argued the
deposition testimony reflects the School Employees considered the safety and security
of students and staff as their top priority. The school administrators worked with local law
enforcement to provide safety training to students and staff, and each school conducted
state-mandated emergency drills, including an active shooter drill at Chardon High School
in 2009, with the involvement of local police and fire departments. The school had a
safety and security plan in place, which was evaluated by law enforcement for possible
improvements; law enforcement was never critical of the protocols in place, including not
having a school resource officer (“SRO”) stationed at the school. Police officers were in
the building on a daily basis, either responding to calls or meeting with students and staff;
the Chardon Police Department also required an officer to walk through the high school
twice a day when school was in session. Lieutenant Troy Duncan, the police
department’s liaison to the school district, was at the high school at least once per week.
{¶8} The School Employees also engaged in efforts to increase security and
safety by having staff and administrators act as a visible presence throughout the school
day, but particularly in the mornings when the students arrived at school. Staff monitored
the cafeteria, where large numbers of students would congregate before classes began.
The administrators also provided guidance counselors, worked to become acquainted
with individual students, and regularly attended school safety and security conferences.
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{¶9} The Chardon School Employees also argued that summary judgment in
their favor was appropriate because, even without statutory immunity, they owed no legal
duty to Plaintiffs or their decedents to protect against Lane’s unforeseeable criminal acts.
They contended Ohio law does not recognize a “special relationship” between school
officials and students that creates a duty to prevent criminal acts of third parties. Further,
they claimed not to have a legal duty because Lane’s actions were not foreseeable: there
was no history of violent crime at Chardon High School; the School Employees had no
knowledge Lane intended to bring a gun to school or intended to kill other students; they
had no knowledge of any behavioral issues or violent propensities; Lane attended Lake
Academy at the request of his guardians, not due to academic or behavioral issues; he
had no disciplinary issues; and Lane was on track to graduate early despite attendance
issues.
{¶10} Finally, the Chardon School Employees argued summary judgment in their
favor was appropriate because Lane’s actions were the sole proximate cause of Plaintiffs’
injuries and damages. They argued that Plaintiffs’ claim that the Chardon School
Employees failed to employ an SRO, and that this measure would have prevented the
shooting, is legally insufficient to hold them liable. First, the decision to hire an SRO is
within the exclusive province of the Board of Education, not the School Employees.
Second, Plaintiffs did not present legally sufficient evidence that an SRO would have
prevented the shooting, which was over in approximately 22 seconds, or that it would
have deterred Lane from bringing a gun to the school.
{¶11} Plaintiffs duly opposed the motion, contending triable issues of fact were
established upon the claim that the lives and safety of the Chardon High School students
had been recklessly endangered. Plaintiffs asserted the School Employees’ motion for
summary judgment ignored deposition testimony that established critical security
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recommendations that would have either prevented or deterred Lane’s criminal actions
were “rashly rejected.” They contended Chardon High School was not nearly as safe as
suggested by the School Employees and that local police were called to the school 500-
600 times per year, “typically in response to reports of fighting, threats to faculty and staff,
drugs, thefts, and vandalism.”
{¶12} Plaintiffs concluded that if an SRO had been present at the high school, it
is doubtful the shooting would have occurred. Superintendent Bergant, Principal Fetcik,
and Assistant Principal Trimble all agreed that Lane should have been removed from the
cafeteria when he arrived at the school wearing a sweatshirt on which was printed the
word “KILLER.” Video surveillance shows that Lane was never confronted in the 30
minutes before he began shooting in the cafeteria. Plaintiffs contend the cafeteria would
have been the most likely location an SRO would have been stationed. This argument
was based on the report of Gregory M. Baeppler, a security consultant hired by Plaintiffs
as an expert witness. Baeppler also concluded it was likely Lane would have been
deterred from bringing a gun, knowing an armed SRO was present at the school. Plaintiffs
further bolster their argument with the fact that an SRO was hired following the shooting
and that Bergant has acknowledged criminal activity at the school has diminished.
{¶13} Plaintiffs alleged the Chardon School Employees prevented the hiring of an
SRO. A Safety and Security Action Team (“SSAT”) was formed in 2006, which included
Police Chief Timothy McKenna and Lieutenant Troy Duncan, with Assistant Principal
Trimble as the Chairperson. The SSAT was tasked with creating a proposal to address
security issues and presenting it to the Chardon School Board. Plaintiffs alleged the
original proposal included a recommendation for a full-time SRO, which had been
endorsed by Lt. Duncan, but that Trimble unilaterally crossed it off and handwrote
“supervision” before it was presented to the School Board in April 2007. Plaintiffs also
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contended that by September 2008 it was foreseeable a gunman could enter Chardon
High School. This argument was based on a letter sent from Superintendent Bergant to
school parents and staff that addressed an incident involving a student with a handgun at
a nearby high school. Bergant had discussed the option of an SRO with Chief McKenna
and Lt. Duncan but did not address the issue with the School Board.
{¶14} Plaintiffs further argued that schools do have a legal duty to keep their
students safe and that school shootings are foreseeable, based on the recent increase in
such incidents. They argued the risk was known to the Chardon School Employees, as
evidenced by the active shooter drill performed in 2009. But, they argued, the Chardon
School Employees were indifferent to critical preventative measures.
{¶15} In their reply, the Chardon School Employees responded that, “whatever
the plaintiffs’ criticisms of Chardon High School and its administrators, * * * the absence
of a [SRO] at the high school does not rise to the level of malicious, reckless or wanton
misconduct or bad faith on the part of individual school administrators. Consideration and
action upon this issue ultimately rested with the Board of Education, not the individual
administrators. In light of the existing presence of and relationship with law enforcement
at Chardon High School, the absence of a [SRO] cannot reasonably be said to be
misconduct so perverse as to discard statutory immunity.” They further argued that the
opinion of Plaintiffs’ expert witness that an SRO would have prevented the shooting was
merely speculative and pure conjecture.
{¶16} On February 15, 2018, the trial court granted the motion and entered
summary judgment in favor of the Chardon School Employees. The trial court concluded
there was no evidence of bad faith or of malicious, wanton, or reckless behavior on the
part of the Chardon School Employees, nor was there any evidence they knew or should
have known Lane posed a danger to other students.
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{¶17} The trial court also noted that Plaintiffs had significantly misstated the
history of police interaction with Chardon High School. Based on Chief McKenna’s
deposition testimony, the 500 to 600 calls to which Chardon Police responded each year
included visits to all schools in the Chardon School District and the twice-a-day routine
walk-throughs at the middle and high schools. The number one reason for calls requiring
a police response were faulty alarm signals, not violence.
{¶18} This matter is now before us on the notice of appeal filed by Plaintiffs, who
raise the following two assignments of error:
[1.] The trial judge abused his discretion by finding that the report that
had been prepared by Plaintiff-Appellants’ security specialist was too
‘speculative’ to be submitted to the jury.
[2.] The trial judge erred, as a matter of law, by granting summary
judgment upon Plaintiff-Appellants’ claims for reckless and wanton
liability under R.C. 2744.03(A)(6)(b).
The Chardon School Employees responded and raise one cross assignment of error:
As an alternative basis for summary judgment, the Chardon School
Employees were also entitled to summary judgment because [Lane]
was the sole proximate cause of the Appellants’ injuries.
{¶19} “‘Summary judgment is a procedural device to terminate litigation and to
avoid a formal trial when there is nothing to try. It must be awarded with caution[.]’”
Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358 (1992), quoting Norris v. Standard Oil
Co., 70 Ohio St.2d 1, 2 (1982). An appellate court reviews a trial court’s decision to grant
summary judgment under a de novo standard of review, i.e., “independently and without
deference to the trial court’s determination.” Brown v. Cty. Commrs. of Scioto Cty., 87
Ohio App.3d 704, 711 (4th Dist.1993) (citation omitted); see also Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105 (1996).
{¶20} “Civ.R. 56(C) specifically provides that before summary judgment may be
granted, it must be determined that
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(1) [n]o genuine issue as to any material fact remains to be litigated;
(2) the moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can come to
but one conclusion, and viewing such evidence most strongly in favor
of the party against whom the motion for summary judgment is made,
that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977); see also Murphy, supra, at
359 (“Doubts must be resolved in favor of the non-moving party.”).
{¶21} The rule further provides that “[s]ummary judgment shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the
action, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Civ.R. 56(C).
{¶22} “[A] party seeking summary judgment, on the ground that the nonmoving
party cannot prove its case, bears the initial burden of informing the trial court of the basis
for the motion, and identifying those portions of the record that demonstrate the absence
of a genuine issue of material fact on the essential element(s) of the nonmoving party’s
claims.” Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). “If the moving party fails to
satisfy its initial burden, the motion for summary judgment must be denied.” Id.
{¶23} If this initial burden is met, the nonmoving party then bears the reciprocal
burden to set forth specific facts demonstrating there is a genuine issue for trial. Id. at
293, citing Civ.R. 56(E). If the nonmovant fails to do so, summary judgment will be
entered against the nonmoving party. Id.
Assignment of Error I
{¶24} As stated above, Plaintiffs submitted the expert report of Gregory M.
Baeppler, a security consultant, in support of their allegations. In the report, Baeppler
made the following findings and opinions:
9
The Chardon Schools Administrators had a responsibility to protect
the children attending the Chardon Schools. It was their
responsibility to promulgate and implement security measures and
policies to provide a safe and secure environment.
The Chardon Administrators had a responsibility to provide a safe
and secure environment including taking measures to deter and
prevent intruders or active shooters.
The security measures put in place by the Defendant Administrators
at the time of the shooting were grossly insufficient to protect
students and staff. Proper security measures should have included
an SRO, restricted access and entrance monitoring would have likely
prevented the tragedy of February 27th 2012.
The Safety and Security Action Team, including Chardon Police
Department Chief McKenna and Lieutenant Duncan, specifically
recommended that an SRO was needed in Chardon High School in
2007.
Superintendent Bergant concluded on his own in early 2011 that an
SRO was needed in Chardon High School, but took no action to have
the SRO put into place. This egregious and inexcusable failure
included not going to the board for approval or discussing the need
for an SRO with other administrators. Bergant’s conduct was
reckless and wanton in failing to take action on his conclusion that
an SRO was needed prior to the 2011-2012 school year at the High
School.
Prior to the February 27th 2012 shooting, there was an overwhelming
amount of criminal activity occurring at Chardon High School,
including fights, assaults and drug activity. By the estimate of the
Police Chief, Chardon Police Department was called to the Chardon
schools 500 – 600 times per year.
The Defendant Administrators deliberately disregarded the
recommendations of their own local law enforcement in failing to
arrange, provide and employ an SRO in Chardon High School prior
to the shooting. This conduct by the Defendant Administrators is
reckless and wanton, and placed the safety of Chardon High School
students and staff at risk.
The actions of the Defendant Administrators in failing to employ and
utilize an SRO in violation of the SSAT recommendations and local
law enforcement recommendations were reckless and wanton.
This shooting incident was foreseeable. That the Chardon schools
recommended practicing a scenario involving an active shooter
10
situation in 2009 speaks directly to their awareness of the issue.
Superintendent Bergant also admitted this was a well-recognized
threat the school faced.
Interestingly, a school math teacher, Thomas Ricci, thought an active
shooter in the High School was foreseeable enough to have TWO
ballistic vests available in his classroom.
Vice Principal Trimble, without any authorization and in direct
contradiction of the SSAT’s report and recommendations, crossed
off the recommendation of an SRO on the SSAT strategic planning
report. As a result, the determined and recommended need for an
SRO was not presented to the board as planned and anticipated.
This conduct is reckless and wanton, and placed students and staff
at risk.
The tragic murders of Russell King, Jr., Demetrius Hewlin, and
Daniel Parmertor and the senseless crippling of Nick Walczak, by
gunshot occurred as a direct and proximate result of the egregious
conduct and actions of the Defendant Administrators documented in
the materials I reviewed and outlined in my report.
{¶25} Baeppler ultimately concluded in his report that (1) “an SRO would have
deterred and prevented the incident from occurring in the first place”; and (2) the failure
of the Defendant Administrators to employ an SRO was reckless and wanton, placed
students and staff at risk, and “directly led to this tragedy, including the deaths * * * and
catastrophic injuries” of the students.
{¶26} The trial court found the expert report is inadmissible because it is
speculative and renders a conclusion within the province of the finder of fact. Plaintiffs
argue under their first assignment of error that this was reversible error.
{¶27} Generally, “[t]rial courts have broad discretion in determining the
admissibility of expert testimony, subject to review for an abuse of discretion.” Terry v.
Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, ¶16; citing Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137 (1999). “‘Abuse of discretion’ suggests unreasonableness,
arbitrariness, or unconscionability. Without those elements, it is not the role of this court
11
to substitute its judgment for that of the trial court.” Valentine v. Conrad, 110 Ohio St.3d
42, 2006-Ohio-3561, ¶9 (citation omitted). In a summary judgment exercise, however,
“the decision to admit evidence is purely a legal one as it involves solely a question of
law, thus necessarily the standard of review is de novo.” Rilley v. Brimfield Twp., 11th
Dist. Portage No. 2009-P-0036, 2010-Ohio-5181, ¶56. “‘Ohio’s standards regarding the
admissibility of expert opinions are relatively lenient as to a determination of who is an
expert but relatively strict in governing the admissibility of the expert testimony.’” Id. at
¶59, quoting Douglass v. Salem Community Hosp., 153 Ohio App.3d 350, 2003-Ohio-
4006, ¶31 (7th Dist.), citing State v. Rangel, 140 Ohio App.3d 291, 295 (1st Dist.2000).
{¶28} Plaintiffs assert the trial court misapprehends the governing standards, in
that Evid.R. 704 permits opinion testimony on the ultimate issue to be decided by a jury.
{¶29} Evid.R. 704 provides: “Testimony in the form of an opinion or inference
otherwise admissible is not objectionable solely because it embraces an ultimate issue to
be decided by the trier of fact.” As explained in the Staff Notes to Evid.R. 704, however,
“[t]he rule does not serve to make opinion evidence on an ultimate issue admissible; it
merely provides that opinion evidence on an ultimate issue is not excludable per se. The
rule must be read in conjunction with Rule 701 [opinion testimony by witnesses] and Rule
702 [testimony by experts.]”
{¶30} Evid.R. 702 provides that a witness may testify as an expert if all of the
following apply:
(A) The witness’ testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge,
skill, experience, training, or education regarding the subject matter
of the testimony;
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(C) The witness’ testimony is based on reliable scientific, technical,
or other specialized information.
{¶31} Accordingly, “‘[e]xpert opinion testimony is admissible as to an ultimate fact
without infringing [upon] the function of the jury, if the determination of such ultimate fact
requires the application of expert knowledge not within the common knowledge of the
jury.’” State Auto. Mut. Ins. Co. v. Chrysler Corp., 36 Ohio St.2d 151, 162 (1973), quoting
McKay Machine Co. v. Rodman, 11 Ohio St.2d 77 (1967), paragraph three of the syllabus.
{¶32} Here, the trial court held that “the question of whether the School
Employees acted with malicious purpose, in bad faith, or in a wanton or reckless manner
is the ultimate question for the finder of fact and not of such highly technical nature to be
beyond the comprehension of the average juror. Furthermore, Baeppler’s conclusion that
an SRO would have deterred and prevented the incident, which was completed in 22
seconds, is completely speculative. Because a fact-finder is capable of reaching
conclusions on these issues without an expert-witness opinion, Baeppler’s testimony
would be inadmissible at trial, and therefore cannot be relied upon in a summary judgment
action.”
{¶33} We do not conclude that the trial court demonstrated a misapprehension of
the law in this regard. We also do not conclude that the trial court erred in its application
of the law in ruling the expert report inadmissible.
{¶34} The conclusions in Baeppler’s report relating to proximate cause,
deterrence, and prevention are purely speculative and therefore legally insufficient to
demonstrate a genuine issue of material fact. They were not based on reliable scientific,
technical, or other specialized information, and Baeppler did not identify any standard of
care or standard security practices in the industry upon which he based his opinion. See,
e.g., Hackathorn v. Preisse, 104 Ohio App.3d 768, 772 (9th Dist.1995) (expert opinion
13
that a vocational school teacher acted recklessly by failing to provide adequate protection
from an accident was conclusory and therefore did not create a genuine issue of material
fact); Fediaczko v. Mahoning Cty. Children Servs., 7th Dist. Mahoning No. 11 MA 186,
2012-Ohio-6090, ¶31 (“just because a plaintiff can find an expert to state in an affidavit
that an act was reckless does not mean that there is a genuine issue for trial as to whether
the defendant lost her immunity due to recklessness”); Shalkhauser v. Medina, 148 Ohio
App.3d 41, 2002-Ohio-222, ¶41 (9th Dist.) (emphasis sic) (“Appellant fails to appreciate
that this testimony does not create any issues of fact, but merely states appellant’s
position with respect to appellees’ culpability, which is a legal conclusion.”).
{¶35} There are many speculative aspects of the report, e.g., where the SRO
would have been stationed at the time of the shooting; whether the SRO would have seen
Lane and what was printed on his sweatshirt; and whether an SRO could have done
anything during the 6 seconds of shooting in the cafeteria. Additionally, Baeppler’s expert
report opines on legal duties and obligations of the Chardon School Employees. Nothing
in Baeppler’s curriculum vitea establishes how he is qualified to draw these conclusions
regarding the School Employees’ standard of care.
{¶36} Further, the ultimate question of whether the Chardon School Employees’
conduct was malicious, wanton, reckless, or in bad faith does not require the application
of expert knowledge. The average juror would be capable of evaluating the same
evidence available to Baeppler in determining this issue. Therefore, although Baeppler’s
report was not objectionable merely because it reaches the ultimate issue, it was
objectionable because it neither relates to matters beyond the knowledge or experience
of lay persons nor serves to dispel a misconception common among lay persons. See,
e.g., Donlin v. Rural Metro Ambulance, Inc., 11th Dist. Trumbull No. 2002-T-0148, 2004-
14
Ohio-1704, ¶26 (a fact-finder is capable of determining whether a first responder’s alleged
failure to follow protocol was willful and wanton misconduct).
{¶37} Plaintiffs’ first assignment of error is without merit.
Assignment of Error II
{¶38} Under their second assignment of error, Plaintiffs argue the trial court erred
in granting summary judgment in favor of the Chardon School Employees. Specifically,
they assert the evidence demonstrates genuine issues of material fact exist as to the
School Employees’ indifference to enacting critical preventative measures, specifically
the failure to employ an SRO at Chardon High School. The School Employees respond
that they are immune from liability because there is no evidence that any decision not to
employ an SRO or other preventative measures amounts to bad faith or malicious,
wanton, or reckless behavior.
{¶39} Subject to three exceptions, employees of political subdivisions, which
includes school districts, are immune from liability in a civil action brought “to recover
damages for injury, death, or loss to person or property allegedly caused by an act or
omission in connection with a governmental or proprietary function.” R.C. 2744.03(A);
see also Vidovic v. Hoynes, 11th Dist. Lake No. 2014-L-054, 2015-Ohio-712, ¶48, citing
O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, ¶47. The exception to
immunity relevant in this case is when “[t]he employee’s acts or omissions were with
malicious purpose, in bad faith, or in a wanton or reckless manner[.]” R.C.
2744.03(A)(6)(b).
{¶40} “Malice” is characterized by “hatred, ill will or a spirit of revenge,” or “a
conscious disregard for the rights and safety of other persons that has a great probability
of causing substantial harm.” Preston v. Murty, 32 Ohio St.3d 334, 336 (1987). “Bad
faith” connotes a “dishonest purpose” or “conscious wrongdoing.” Canfora v. Coiro, 11th
15
Dist. Lake No. 2006-L-105, 2007-Ohio-2314, ¶72. “Wanton” misconduct is the failure to
exercise any care whatsoever towards those to whom a duty of care is owed under
circumstances where there is a great probability that harm will occur. Hawkins v. Ivy, 50
Ohio St.2d 114, 117-118 (1977). “Reckless” conduct includes actions where one
possesses a “perverse disregard of a known risk” and where the actor is conscious that
his conduct will in all probability result in injury. O’Toole, supra, at ¶73-74; Anderson v.
Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, paragraph four of the syllabus (reckless
conduct is “substantially greater than negligent conduct”).
{¶41} These mental states have been summarized as “a willful and intentional
design to do injury without just cause or excuse (88 Ohio Jurisprudence 3d, Torts Section
1) or a failure to exercise any care when the probability of harm is great, and that
probability of harm is known to the actor (70 Ohio Jurisprudence 3d, Negligence Section
34).” Smith v. McCarty, 9th Dist. Summit No. 15670, 1993 WL 6280, *2 (Jan. 13, 1993);
see also Vidovic, supra, at ¶52, quoting Piispanen v. Carter, 11th Dist. Lake No. 2005-L-
133, 2006-Ohio-2382, ¶28.
{¶42} “While a political subdivision employee’s entitlement to immunity is
ordinarily a question of law, whether there exists malice, bad faith, and wanton or reckless
behavior are generally questions of fact to be resolved by the jury. ‘Summary judgment
is appropriate only when the facts are clear and fail to rise to the level of conduct that
could be construed as malicious, in bad faith, or wanton and reckless.’” Spitulski v. Bd.
of Educ. of Toledo City School Dist., 6th Dist. Lucas No. L-16-1225, 2017-Ohio-2692,
¶23, quoting Long v. Hanging Rock, 4th Dist. Lawrence No. 09CA30, 2011-Ohio-5137,
¶18. See also O’Toole, supra, at ¶75, and Vidovic, supra, at ¶53.
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{¶43} Upon our thorough and independent review of the record, we conclude that
the record completely supports the trial court’s decision. The relevant portion of the trial
court’s decision reads as follows:
Trial Court’s Decision
{¶44} Upon review, the court finds the School Employees’ Motion for Summary
Judgment well taken. As an initial matter, Plaintiffs’ significantly misstate the history of
police interaction with Chardon High School. The 500 to 600 police “calls” Chardon Police
Department responded to were not, as Plaintiffs allege, “typically in response to reports
of fighting, threats to faculty and staff, drugs, and vandalism,” nor were the police visits
strictly to Chardon High School. According to former Chardon Police Chief Timothy
McKenna’s (“Chief McKenna”) deposition testimony, the 500 to 600 calls included visits
to all schools in the Chardon School District. Mckenna Depo. p. 67. He stated that
“[e]very time an officer stopped to do a walk-through as required morning and afternoon,
both middle and the high school created a call.” Id. As for calls requiring a police
response, Chief McKenna stated that faulty alarm signals “would probably be your
number one response.” Id. at p. 70. Although Chief McKenna acknowledged that verbal
and physical fights, vandalism and drug issues occurred at Chardon High School, he gave
no indication that such situations were a common or pervasive problem. Id. at pp. 70-72.
Additionally, he was aware of only one incident in which a student had brought a firearm
to a football game, and he had no knowledge of any student ever bringing a knife or gun
into Chardon High School. Id.
{¶45} The Chardon School District formed the Safety and Security Team in the
2006/2007 school year as part of its Strategic Safety Plan, to explore all aspects of safety
and security throughout the Chardon Schools and determine where deficiencies might
exist. The group’s mission was to meet and create a Safety Proposal to present to the
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Chardon School Board before the 2007/2008 school year. Although the group included
several individuals at the outset, members gradually dropped out, leaving as the final
team members, High School Principal Doug DeLong (“DeLong”) [DeLong left the Chardon
School District at the end of the 2007/2008 school year.], Lt. Duncun, community member
and parent Tim Georgen (“Georgen”), and Assistant Principal Drew Trimble (“Trimble”),
who was the committee chair.
ASSISTANT PRINCIPAL DREW TRIMBLE
{¶46} Plaintiffs claim that Trimble exhibited willful and wanton misconduct by
making the unilateral decision to remove the SRO recommendation from the Safety Plan.
Trimble stated that as committee Chair, she facilitated the meetings and typed the
finalized Safety Proposal with input from the committee. Trimble Depo., pp. 15-16. Her
function was not to “approve” the plan but to submit the plan based upon the findings of
the group as a whole. Id. at p. 31. The committee’s task was to evaluate security issues
for the entire district, not just the high school, and the group met approximately ten times.
Id. at pp. 24, 52. Trimble recalled that, with input from law enforcement, the committee
determined safety and security issues in Chardon were being “handled” and although an
SRO would have been a nice addition, it was not deemed “necessary.” Id. at p. 22. The
term “SRO” was crossed off the final plan and replaced by “Supervision” after the group
decided a full-time SRO was not needed, and student/security issues would be addressed
by in-building administration and/or the Chardon Police Department or Geauga Sheriff’s
Department if necessary. Id. at p. 142. Trimble gave the completed Safety Proposal to
Superintendent Joseph Bergant, II (“Bergant”) before it went to the Chardon School Board
but she had no involvement in the creation or promulgation of the Safety Plan which was
subsequently enacted. Id. at pp. 131, 141. She recalled no further conversations
18
concerning SROs after the Safety Proposal was presented to the Chardon School Board
in the fall of 2007. Id. at p. 77.
{¶47} Parent and citizen committee member Georgen stated that the
recommendations were not up to individual members but the entire committee. Georgen
Depo., p. 45. The SRO discussions considered whether it would be reasonable to have
an SRO at Chardon High School, given that Chardon is a city with a population of only
5,000. Id. at pp. 18, 21. Georgen did not recall reaching definitive conclusions about
SROs and considered the discussions to be “a recommendation to research it further.”
Id. at p. 18. Lt. Duncan recalled recommending an SRO as part of the Security Plan, but
acknowledged that it was one of “the 15 or 18 things” they discussed to improve security.
Duncan Depo., pp. 62, 67. He did not recall being present when the SRO
recommendation was changed to “Supervision,” nor did he know who was responsible
for making the change. Id. at pp. 65, 67. Nonetheless, he considered the security
apparatus in place at Chardon High School to be adequate and appropriate, and stated
that he would not have sent his daughter to the school if he did not think it was safe. Id.
at pp. 94-95. Georgen also believed the school district had taken reasonable measures
to ensure the safety and security of his children. Georgen Depo., p. 46.
{¶48} The court finds there is no evidence of malice, bad faith, and wanton or
reckless behavior on the part of Trimble. Trimble denied having any particular decision-
making authority beyond that of the other group members, and both Lt. Duncan and
Georgen indicated that decisions were made by group consensus. The evidence
indicates that the [SSAT] meetings were “brainstorming” sessions to consider options for
increasing safety and security throughout the district, while also considering the costs
involved. No evidence exists that the ultimate conclusions were anything other than a
group recommendation to forward to the Chardon School Board, who would then decide
19
which, if any measures, to implement. Assuming, arguendo, that Trimble unilaterally
changed the SRO recommendation to “Supervision,” there is no evidence that she did so
with “‘a willful and intentional design to do injury without just cause or excuse * * * or a
failure to exercise any care when the probability of harm is great, and that probability of
harm was known’” to her. [Vidovic quoting Piispanen, supra.] As such, Trimble is entitled
to judgment as a matter of law on the immunity issue.
SUPERINTENDENT JOSEPH BERGANT, II
{¶49} Bergant was Superintendent of the Chardon Local Schools from 2005 to
2013. Bergant Depo., p. 7. He acknowledged that from an employment standpoint, he
was the “point person” for security issues at Chardon High School, but Trimble was
knowledgeable about security as well. Id. at p. 10. Bergant recalled having one casual
conversation with Chief McKenna in approximately August 2011 in which Chief McKenna
recommended that the school district investigate obtaining an SRO for Chardon High
School. Id. at pp. 11-13. Bergant believed the school district lacked the money to pay
for an SRO but Chief McKenna advised him that grants to pay for the SRO were available
from the U.S. Department of Education. Id. at p. 17. He acknowledged that prior to 2011
there were no funds budgeted for an SRO because he “didn’t want one.” Id. at p. [19].
After the discussion with McKenna, Bergant decided that an SRO was needed but he did
not tell Trimble, the Chardon Board Members or anyone else. Id. at pp. 60-62. Prior to
the shooting, Bergant never requested from the School Board any funds for an SRO. Id.
at p. 86.
{¶50} In 2008, Bergant sent a letter to parents and staff in the district advising
them that a student had entered Willoughby South High School with a gun and had been
apprehended by police. Id. at p. 116. Bergant agreed that it was foreseeable after the
Willoughby South incident, that a person could enter Chardon High School with a gun.
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Id. at p. 118. In response, the Chardon Schools increased the number of security
cameras, and school officials made a visit to the Orange School District to observe a crisis
drill. Id. at p. 123. With the cooperation of local law enforcement, an active shooter drill
was conducted at Chardon High School in 2009. Id. at p. 130. Bergant agreed there was
nothing proactive in the district’s Strategic Safety Plan to deter a shooting from occurring,
and that the safety measures they had undertaken were reactive measures, intended to
respond after a shooter had entered the building. Id. at pp. 129-130.
{¶51} Plaintiffs contend that Bergant is liable because he did not pursue more
proactive measures including budgeting for an SRO, even after a student with a gun had
entered Willoughby South High School and Bergant realized that such a situation could
occur at Chardon High School. The court finds that Bergant’s actions cannot be
characterized as conduct beyond negligence, for which Bergant is entitled to immunity.
R.C. 2744.03(A)(6). There is no evidence that Bergant acted in bad faith, i.e., with a
dishonest purpose, moral obliquity, conscious wrongdoing, [or] breach of a known duty
through some ulterior motive or ill will. Shadoan v. Summit Cty. Children Serv. Bd., 9th
Dist. Summit No. 21486, 2003-Ohio-5775. Nor is there evidence that he acted wantonly,
i.e., by failing to exercise any care toward those to whom a great duty of care is owed
under the circumstances in which there is great probability that harm will result; or
recklessly, i.e., with conscious disregard of or indifference to a known or obvious risk or
harm to another that is unreasonable under the circumstances. Chavalia v. Cleveland,
8th Dist. Cuyahoga Nos. 104608 & 104621, 2017-Ohio-1048. Accordingly, the court finds
that Bergant is entitled to judgment as a matter of law.
OPERATIONS MANAGER DANA STEARNS
{¶52} In 2012, Dana Stearns (“Stearns”) was the Manager of Operations for the
Chardon Board of Education. Stearns Depo., p. 7. Stearns stated that his employment
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responsibilities included overseeing all non-teaching personnel throughout the school
district. Id. In addition, at the direction of the Superintendent, he researched options for
certain security measures, such as surveillance cameras on school buses, and controlled
access systems for entry into all school buildings. Id. at pp. 18-19. Based upon his
research and the proposals he received, Stearns made a recommendation to the
Superintendent, who in turn, made a recommendation to the Chardon School Board. Id.
at pp. 23-24. The Chardon School Board had the ultimate authority for approval of any
safety or security expenditure. Id. Stearns had only implementation and design authority
for safety equipment, after the decision to purchase the equipment had been approved
by the Chardon School Board. Id. at p. 11. He had no authority regarding the decision
to hire an SRO and never discussed with anyone the possibility of having an SRO in the
high school. Id. at p. 12.
{¶53} Plaintiffs have made no specific allegations against Stearns and provide no
evidence that he had any decision-making authority for hiring an SRO. As such, he is
entitled to immunity as there is no evidence that he engaged in conduct as set forth in
R.C. 2744.03(A)(6)(b).
ASSISTANT PRINCIPAL MICHAEL J. SEDLAK
{¶54} Michael Sedlak (“Sedlak”) was an Assistant Principal at Chardon High
School from the fall of 2010 through the end of the 2012/2013 school year. Sedlak Depo.
p. 6. The Safety Proposal and the implementation of the Strategic Safety Plan had been
completed prior to his hiring. Id. at p. 9. He was not involved in any discussions
concerning staffing for security prior to the shooting in 2012, nor did he have any
discussions with school officials or local law enforcement about the use of an SRO at
Chardon High School. Id. at pp. 8, 11. Sedlak did not recall having conversations with
Superintendent Bergant or Principal Andrew Fetchik (“Fetchik”) about budget issues for
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security, but he believed he could raise such issues for discussion with Fetchik if he
thought a particular security measure was needed. Id. at p. 18. He acknowledged that
the purpose of hiring an SRO after the shooting was to keep students and staff safe. Id.
at p. 38.
{¶55} The court finds that Sedlak is entitled to immunity as Plaintiffs raise no
specific allegations against Sedlak and present no evidence that he engaged in acts of
bad faith, maliciousness, recklessness, or wanton conduct.
PRINCIPAL ANDREW FETCHIK
{¶56} Fetchik was the Chardon High School Principal from the 2008/2009 school
year through the 2015/2016 school year. Fetchik Depo. p. 5. The Strategic Safety Plan
was already in place when he was hired. Id. at p. 10. Prior to 2012, annual meetings
were conducted in which Fetchik, Sedlak, Trimble, Bergant, Stearns, Lt. Duncan, and
Chief McKenna would evaluate security based upon the Strategic Safety Plan or Board
policy. Id. at 17. Fetchik recalled general discussions about safety but he had no
recollection of ever recommending an SRO to the group. Id. at p. 15. He would have
made the recommendation for an SRO if he felt that one was needed. Id. at p. 20. Fetchik
did not recall having specific discussions about SROs with either Lt. Duncan or Chief
McKenna, and he never requested funds for an SRO in his annual budget request. Id. at
pp. 22, 32.
{¶57} The court finds no specific allegations have been made against Fetchik and
there is no evidence that Fetchik acted with bad faith, malice or in a wanton and reckless
manner. Accordingly, he is entitled to immunity on Plaintiffs’ claims.
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Conclusion
{¶58} We find no way to improve upon the trial court’s well-written entry as it
pertains to the individual Chardon School Employees. Therefore, we adopt the quoted
portion of the trial court’s decision as our own.
{¶59} In their reply brief on appeal, Plaintiffs contend the Chardon School
Employees have “refused to address damaging evidence” in the record. Specifically, they
assert that no meaningful supervision was being furnished in the cafeteria because (1)
the School Employees conceded that Lane’s sweatshirt, on which was printed the word
“KILLER,” should have been a warning and a red flag that Lane should have been
immediately removed from the cafeteria, and (2) Fetchik was only able to identify a single
teacher, a study hall monitor, who monitored approximately 150 students in the cafeteria
in the mornings. Additionally, Plaintiffs assert that the School Employees’ defense of
Lane’s character is not credible because of his frequent absences caused by alleged
migraines that were never verified. None of these contentions creates a genuine issue
of material fact as to whether the School Employees acted in bad faith or engaged in
other conduct that obviates their statutory immunity. These contentions merely highlight
the instability and hindsight nature of Plaintiffs’ claim. Absent is reference to any definitive
breach of an established duty.
{¶60} Appellants additionally filed a notice of supplemental authority, which offers,
in support of their arguments on appeal, the opinions in Estate of Olsen v. Fairfield City
School Dist. Bd. of Edn., S.D.Ohio No. 1:15cv787, 2018 WL 4539440 (Sept. 21, 2018)
and Meyers v. Cincinnati Bd. of Edn., S.D.Ohio No. 1:17-cv-521, 2018 WL 4566271 (Sept.
24, 2018). Both cases arose after two young students committed suicide, allegedly as a
result of ongoing bullying at the students’ schools. Appellants specifically direct our
24
attention to the following passage from a Sixth Circuit opinion, applying Tennessee law,
which is quoted in both district opinions:
Our newspapers and television networks consistently report
instances when young people harm themselves or others after being
bullied by their peers. Such occurrences may not be common within
an individual school, but because reports of these tragedies are
consistent and well-publicized, all school districts should realize that
self-harm is a reasonably foreseeable result of bullying, without
requiring specific evidence of the victim’s mental state. If a school is
aware of a student being bullied but does nothing to prevent the
bullying, it is reasonably foreseeable that the victim of the bullying
might resort to self-harm, even suicide.
Tumminello v. Father Ryan High Sch., Inc., 678 Fed.Appx. 281, 288 (6th Cir.2017)
(emphasis sic); see Olsen, supra, at *13; Meyers, supra, at *11. We conclude that the
opinions in Olsen and Meyers, as well as Tumminello, involve legal issues inapposite to
those at issue in the case sub judice. Further, they do not support appellants’ position on
appeal; there is no evidence in the record whatsoever that any of the School Employees
were aware of but consciously disregarded Lane’s propensity for violence or his intention
to carry out an attack on the school. In fact, there is no evidence Lane had any propensity
for violence at all until the shooting occurred.
{¶61} After reviewing the evidence in a light most favorable to Plaintiffs, we
conclude the trial court correctly granted summary judgment in favor of the Chardon
School Employees. We are very mindful that what took place at Chardon High School is
nothing less than tragic; what was lost that day can never be replaced. The evidence
upon which Plaintiffs rely simply does not create a genuine issue of material fact
concerning whether the School Employees acted in bad faith or engaged in conduct that
was malicious, wanton, or reckless.
{¶62} Plaintiffs’ second assignment of error is without merit.
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{¶63} As we have found no basis upon which to reverse the trial court’s judgment,
we decline to review Chardon School Employees’ cross assignment of error regarding
Lane’s actions as the sole proximate cause of Plaintiffs’ injuries and damages. See R.C.
2505.22. Additionally, because we conclude the Chardon School Employees are entitled
to statutory immunity, we need not address their argument that they owed no legal duty
to Plaintiffs to prevent Lane’s criminal actions.
{¶64} The judgment of the Lake County Court of Common Pleas is hereby
affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents.
26